Only common sense? Now may not be the best time to refer to Thomas Paine’s advice to Americans that they should seek independence from Britain, but a keen understanding of what common sense means is important for an expert.

It’s trite to say that experts are there to assist the court on matters within their expertise but it tends to irritate judges if experts provide opinions that tell them what they already know. If you’re being asked to give opinions about matters that are really common sense it’s important to stop and consider if this is really necessary.

In some recent cases a good deal of time, and client’s money, seems to have been spent on expert evidence that really wasn’t needed. As Meade J observed in a patent case involving Motorola and Ericsson, “The experts gave their evidence very fairly and it was not submitted to the contrary. However, with a few exceptions, and this is not the fault of the experts themselves, I found the expert evidence unhelpful and a waste of time. For example, questions were asked to establish that companies in this field like certainty if they can get it, and that patent injunctions are bad for handset manufacturers. I did not need experts to tell me this. “

Similarly in an inheritance tax hearing the Tribunal considered that expert advice on the running of a property business did not assist them, “this is not an area where particular specialist expertise and experience is required to understand the evidence given by those involved in the business.”

Experts and lawyers should take care to avoid wasting time in this way and experts in particular should remember that an irritated judge is unlikely to be of benefit to them or their client.

Summer events round-up. Now the clocks have ‘sprung forward’ and the promise of spring is in the air it seems a good time for a reminder of our events programme for the next few months. As well as our program of training for new experts (plus advanced training on Expert Determination for established experts) the summer programme includes  plenty of in-person opportunities to learn and catch up with other experts;

16^th May Golf Day

20^th May  Expert Witnesses & Conflicts of Interest

11^th June President’s Dinner

17^th June London Legal Walk

1-2nd July Expert Determination (Online)

25th July Gray’s Inn Garden Party

It’s also worth remembering that the first week in June sees London International Disputes Week taking place, with a wide range of events including discussions on AI, construction & aviation disputes and the competing claims of litigation vs arbitration. As always there are opportunities to learn and meet with lawyers from all over the world. Experts who work with in-house counsel rather than external lawyers might also find Crafty Counsel’s conference in the same week useful, the agenda is packed with short sessions on a wide range of topcis including eomployment, privacy, shareholder disputes & construction.

Our picture is from Airedale Springs, The History of Springs in Watchmaking.

Many of us will remember being instructed to show our working in Math exams in the hope of garnering at least some marks for our work even if the eventual answer was way off beam. Simply giving the answer runs the risk of all credit being lost even if its only wrong because of a tiny arithmetical slip.

The same approach is essential for experts, while the courts take note of qualifications and experience in assessing  expert evidence the acid test is whether an expert’s approach to providing an opinion stands up to scrutiny. If the court cannot understand your method then they will be less inclined to take a leap of faith in accepting your answers.

A recent example (Port of Sheerness Ltd v Swire Shipping PTE) involved two experts asked to estimate how long it would take to remove a cargo of plywood from a ship so that the cost of an extended stay in port could be calculated. The judge commented that “The experts were both impressive and well-qualified witnesses. The difference between them was derived from the methodology they employed. Mr Pope employed what I might call a “time and motion” model in which he broke the discharging operation down into its constituent elements and expected durations, making allowance for variable factors. Mr Daniells employed a more general approach based upon experience. “

Despite attempts to criticise the more detailed  approach the answer it gave was closer to contemporaneous estimates and the judge was not persuaded to accept the much higher estimate that was based on a method that was “definitely not a science”. The detailed method had the added benefit of allowing the judge to make a modest adjustment based on issues that emerged during the hearing.

For information and advice on what a expert report should cover see https://academyofexperts.org/users-of-experts/what-is-an-expert-report/

Our picture is from LiberationMath

 

Litigation deadlines are unforgiving and a common gripe among experts is being given instructions too late, with not enough time to do the job properly. The difficulty of course is that we all want to help our client and instructing solicitors, which makes it hard to turn down jobs at short notice.

A recent case (MVL Properties (2017) Ltd v The Leadmill Ltd) should highlight to lawyers how they risk jeopardising their client’s case by last minute instructions. Two experts gave evidence on the costs to refurbish and re-equip a nightclub and music venue, but one had clearly not had time to do a thorough job.

As the judge explained “He very candidly said that his original report was not his best work because it was rushed: he was told at 11am that his final report was required by 4pm. I note that the report was produced after the time specified by the court and only admitted in evidence as a result of an application for relief from sanctions. I do not suggest that Mr Sullivan was responsible for that time pressure: but its existence is apparent from his report.“

Unsurprisingly, the more coherent report of his opposite number was largely preferred. The moral of the tale for lawyers is try to give your experts time to do their job and to experts, think very carefully before accepting ‘urgent’ instructions, you’re the one who will have to explain the results!

Our picture is from disneyclips.com

 

Angel Water or Snake Oil? Anyone starting a new venture needs confidence in their product so it’s hardly surprising when entrepreneurs wax lyrical and sometimes over-state the importance of their inventions. But experts acting in disputes involving new technology need to beware the dangers of not fully investigating their client’s claims.

 

In a recent  case in Abu Dhabi the claimant,  the supposed inventor of a method of creating ‘Angel Water’ was said to be someone “whose self-regard is at times reflected in hyperbole and exaggeration”. He was apparently unable to explain with any clarity how the invention worked and when pressed was not willing to give the court any meaningful details of his ‘trade secrets’.

 

The claimant’s expert “did not get off to a promising start” as he admitted to an ongoing commercial relationship with the claimant which “served immediately to cloud any perception of independent evaluative evidence, or that he had approached this case with an open mind“. That appears to have been compounded  by attempts to convince the court that electrolysis of water would produce a special, flammable “HYDROGAS”, which was “water vapour” but not “steam”.

 

Those of you who were awake during GCSE Chemistry lessons, as both judge and opposing counsel clearly were, will know that water vapour doesn’t burn and the electrolysis of water produces a mixture of hydrogen and oxygen, which does. But sadly for the Claimant  the latter is a well-known fact and not a new invention. All of which leads to the inexorable conclusion that the expert involved was either very much not an expert or very much not independent!

 

Whichever position is correct the answer the court came to was that the Claimant was selling snake oil and should recompense the Defendant for money they had been persuaded to invest!

Our picture is from https://www.smithsonianmag.com/innovation/how-snake-oil-became-a-symbol-of-fraud-and-deception-180985300/ and an article about how Snake Oil became a symbol of  fraud.

The diagnosis of car engine problems has come a long way since the days when a weekly check and clean of sparkplugs was necessary. Car dashboards light up with an astonishing array of warning lights and car mechanics use computer diagnostic tools to identify what’s gone wrong, and sometimes to fix it.

Unfortunately, alongside those changes we’ve all become used to sharing our opinions on social media, something which tripped up a car expert in a recent dispute about a misfiring Citroen.

In David Adam v Moneybarn the car developed faults a year after purchase and a claim, managed by Reject My Car Ltd, was  raised for the repair and/or replacement on the grounds that the car was defective when sold. Both experts agreed that a warning light was displayed and computer diagnostics showed faults but while the claimant’s expert, Mr Smith, diagnosed a misfire because ‘the whole car was shaking  and rocking badly’ and that this was a latent defect, the defendant’s expert observed no shaking and took the view that any misfire could have multiple causes rather than being a fundamental problem.

While the judge accepted that Mr Smith had both relevant knowledge and experience of mechanical faults it turned out that he had actively supported and marketed Reject My Car on Facebook and had, amongst other more temperate posts, commented “could this be the end to being treated with contempt by large, franchised dealerships?”. As the judge commented “Some posts, taken individually, might not give rise to a legitimate attack on Mr Smith’s impartiality. However, I am concerned not just to some of the more blatant individual posts but also the cumulative effect. It leads to the impression that Mr Smith has a certain view as to the car industry, and sympathy for the cases that Reject My Car Ltd take on. “

The expert was not assisted by his client neglecting to mention that he had covered 40,000 miles between buying the car and experiencing problems, the end result being that Reject My Car’s claim was consigned to the scrap heap, presumably along with the car!

The lesson for all experts is to be as careful and balanced in what you say on social media as you would be in court.  For more information on the roles of experts see https://academyofexperts.org/practising-as-expert/

Our picture is from “Grimmer Motors” in NZ

Goldilocks expert reports?  A recent write up on reports in a non-expert context (https://freshspectrum.com/goldilocks/) suggested that there’s no such thing and that authors should create different reports for different audiences. But an expert is only allowed to produce one report so how can that best be achieved?

A report that’s too brief is unlikely to help and in extreme cases such as Jukic v BBC Anor [2025] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2025/221.html , where an expert report was said to exist but like the claimant (and MacAvity perhaps, simply ‘wasn’t there’ judges have no choices but to make do without expert opinion.

In a complex Australian case (ASIC v Money3 Loans [2025] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2025/75.html ) involving consumer lending practise where the judge remarked that “It takes a good deal of persistence to read the Expert Report, which obviously I have.”  an experts report was challenged despite its length for lacking a clear factual matrix supporting the opinions it contained. The report was admitted but a more concise but properly underpinned report might well have saved time and cost.

Clearly too short and too long can both be problematic, but a recent judgement highlights what judges really need. In a sad case involving the treatment of an individual in custody there were two eminent and experienced experts involved but their evidence focused on different aspects of the case. One centred on the individual’s previous mental health history and treatment whereas the other focused on how they had presented to the police and others while under their supervision. Ultimately the issue the judge had to decide was whether they should have been treated differently in custody and their presentation at the time was what mattered, so  an expert analysis of their pervious history was of little or no help to the court.

Dobson v Chief Constable of Leicestershire Police [2025]

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2025/272.html

All of which highlights the need for experts to focus on the issues the court has been asked to decide. For more help on writing expert reports TAE provides regular training courses and a Model Form of Report aimed at helping experts do just that.

https://academyofexperts.org/practising-as-expert/model-form-of-report/#page_content

How do you Keepy-Uppy? It may be a stretch to compare acting as an expert with football, but anyone old enough to have played with an old-style leather football will know that the skills needed to mange that (especially when wet) are different from those needed for modern, synthetic footballs.

 

The same applies to expertise in any area, as highlighted by a recent County Court judgment highlighted by Gordon Exall (http://www.civillitigationbrief.com/2025/01/08/proving-things-254-which-expert-is-going-to-be-accepted-an-important-issue-considered-in-a-clinical-negligence-case/)

 

This was clinical negligence case revolving around dry eyes and the approach to risk taken by the clinician. Both experts were very experienced but the judge highlighted that one had not practised for some time and was not able to comment on current practice, something that in the end meant the other more up-to-date expert’s evidence was preferred.

 

While many experts continue to practice in their chosen field so naturally keep up to date, others find expert work taking over so that staying current is more of challenge. Steps you can take if that applies to you include;

 

Keeping on top of current practice through reading and attending training/events in your field

Practising on some level if at all possible, or shadowing a current practitioner if not

Networking with fellow professionals to discuss new developments and approaches

 

Those are the tactics that spring to mind, if any members have other suggestions we’d love to hear from you.

Great to see so many members at our Chairman’s Lunch to hear Lord Neuberger thank outgoing Chairman Ben Johnson and welcome our new Chairman William Hooper.

Member also enjoyed an entertaining and informative seminar from  Aileen Brown of CMS. Aileen  first reviewed general trends in the courts’ attitudes to expert evidence, noting a trend towards the acceptance of blurred boundaries between factual evidence and opinion, and who presents what. The courts have also shut-down inappropriate attacks from advocates on the credibility of experts.

She proceeded to review cases illustrating very fact-specific occasions on which experts may decide matters of fact. An expert who presented what was seen as legal argument dressed up as expert opinion fared less well. Other cases reminded attendees of the importance of compliance to Part 35, such as showing calculations and citing tests in full. A US case showed that an expert using AI in drafting a report may be criticised if unable to show they have verified their statements appropriately.

We hope you all enjoyed it and made new contacts and refreshed old ones.

Our next member event is an online session on Conflicts from Hamish Lal on 18^th February.

https://academyofexperts.org/events/conflicts-of-interests-hamish-lal/

TAE is fortunate to have offices in the heart of legal London at 3 Gray’s Inn Square and we’ve always been happy to see  members when they’re in London. The days of regular commutes to London may be a distant memory for many since Covid and  lockdown but TAE is still here and we’d like to remind members that we’re available as a venue for meetings or more informally as a place to work  or relax away from your instructing lawyers.

Formal venue hire can be arranged for our whole suite of rooms, which are ideal for mediations, small arbitrations or expert meetings.  Prices range from  £90 for a half day in our smallest room to £595/day for the full suite. Members receive a 35% discount on room rates.

Details of our rooms, hire charges and additional services are available at https://academyofexperts.org/venue/

If you just need somewhere to pause for an hour two someone’s sure to be around  to put the kettle on (no charge for members!) but our rooms are sometimes fully booked, so  please contact us ahead of time and we’ll let you know if there will be space available.

Members can also use the Gray’s Inn Bridge Bar which is close to TAE for coffee, drinks, lunch or tea and can also lunch in the magnificent Gray’s Inn Hall. Please contact us for details and to book.